Case registered before the CJEU under C-563/22

The applicants, D.R.S. and D.S.I, are a mother and daughter of Palestinian origin from the Gaza strip and stateless, who submitted a subsequent application for international protection in Bulgaria claiming that they are at risk upon return due to the insecure situation in Gaza and the difficulties to secure basic living needs because there is war every day there. The Chairman of SAR rejected their applications and applied the exclusion clause provided by Article 1D of the Geneva Convention.

The applicant on her behalf and as representative of her daughter contested the decision and claimed that the SAR did not take into consideration the best interests of the child, that there is no welfare and social development and that the return would put them in danger, risking being subject of inhuman or degrading treatment. It also claimed that the threshold for the minor is higher, and a return would entail a violation of Article 6 of the UN convention for the Rights of the child. The applicant underlined that UNRWA is facing financial issues and cannot ensure assistance and support. The applicant claimed an impossibility to return to the Gaza Strip and mentioned information from the Decision Per. No. 812104-205/21.09.2021 of the Ministry of Internal Affairs of the Republic of Bulgaria and the fact that between 2010-2021, 483 orders for return and two orders for expulsion of Palestinians were issued, but only 11 orders for return to Palestine were implemented out of a total of 97 implemented coercive administrative measures against Palestinians, for 2020 and none for 2021.

The applicants claimed to be registered with UNRWA but to have left the area of operations due to serious threats to safety and life in Gaza and also alleged that UNRWA can no longer offer assistance and support due to financial issues, thus that the protection has ceased.

The Administrative Court of Sofia City made a thorough analysis of appliable EU and national legislation, as well as the CJEU jurisprudence and decided to stay the proceedings and to refer questions to the CJEU for a preliminary ruling:

1. Does it follow from Article 40, paragraph 1 of Directive 2013/32/EU that, where a subsequent application for international protection submitted by an applicant of Palestinian origin, stateless and on the basis of his registration by UNRWA is admitted for consideration, in the circumstances of the case, the obligation of the competent authorities referred to in the provision to take into account and examine all the elements supporting the new information in the subsequent application, interpreted in conjunction with Article 12 (1) (a) of Directive 2011/95, also includes an obligation to examine the reasons why the person left UNRWA’s area of operations, together with the new elements or circumstances which are the subject of the subsequent application? Does compliance with that obligation depend on the fact that the reasons for which the person has left the UNRWA area of operations have already been examined in the context of the procedure relating to the first application for protection which resulted in a final refusal decision, but the applicant has not put forward and provided evidence of his registration with UNRWA?

2.Does it follow from the second sentence of Article 12 (1) (a) of Directive 2011/95 that the provision ‘when such protection or assistance ceases for any reason’ is applicable to a stateless person of Palestinian origin, registered and receiving UNRWA assistance in a [locality] for food, health and education, without evidence of personal threats against the person who has left the territory of his or her own volition and legal [locality], in the information in the case file:

— the general situation at the time of departure has been identified as an unprecedented humanitarian crisis related to shortages of food, drinking water, health services, medicines, water and electricity problems, destruction of buildings and infrastructure, unemployment

— the difficulties experienced by UNRWA in maintaining the provision of assistance and services in Gaza, including for food and health services, due to a significant shortfall in UNRWA’s budget and a steady increase in those dependent on its assistance, the general situation in Gaza undermines UNRWA’s activities?

Is a different answer to this question necessary on the sole ground that the applicant is a vulnerable person within the meaning of Article 20 (3) of that directive, a minor child?

3.Is the second sentence of Article 12 (1) (a) of Directive 2011/95/EU to be interpreted as meaning that an applicant for international protection, a Palestinian refugee registered with UNRWA, may return to the UNRWA area of operations which he has left, in particular [a locality], where, at the time of the examination of his appeal against a refusal decision before the court:

— there is no reliable indication that this person will be able to receive from UNRWA the assistance he needs from food, health services, medicines and medical supplies, education,

— data on the general situation in [locality] and UNRWA, according to B.’ s position on the return to Gaza as of March 2022, were considered to be derived from UNRWA’s area of operations and a ground for non-refoulement; including on return, the applicant will stay in decent living conditions?

In the light of the situation in the Gaza Strip at that time, and in so far as the applicant for international protection is dependent on UNRWA’s assistance for food, health services, medicines and medical supplies, is his personal situation covered by the interpretation of extreme damage under Article 4 of the Charter of Fundamental Rights of the European Union given by the judgment Abubacarr Jawo v Bundesrepublik Deutschland, C‑163/17, 19 March 2019, item 4 of the operative part, for the purposes of applying and complying with the prohibition of refoulement under Article 21 (1) of Directive 2011/95/EU, read in conjunction with Article 19 of the Charter of Fundamental Rights of the European Union, to that applicant?

In the light of data on the general situation in [locality] and UNRWA, should the question of return to Gaza be answered differently on the sole ground that the applicant for protection is a minor child, in order to respect the best interests of the child and to ensure the child’s well-being and social development, security and safety?

4. Depending on the answer to Question 3:

Is the second sentence of Article 12 (1) (a) of Directive 2011/95/EU and the specific provision that ‘such persons are ipso facto entitled to the benefits of this Directive’ to be interpreted in the present case as meaning:

(A) the applicant for protection, a stateless Palestinian registered with UNRWA, is subject to the prohibition of refoulement under Article 21 (1) of Directive 2011/95/EU, read in conjunction with Article 19 of the Charter, on the grounds that, when returned to [a locality], the person concerned will be exposed to the risk of inhuman and degrading treatment due to the possibility of falling into extreme poverty, falls within the scope of Article 15 (2) of Directive 2011/95/EU granting subsidiary protection;

or

(B) as regards an applicant for protection who is a stateless Palestinian registered with UNRWA, it presupposes recognition by that Member State of being a refugee within the meaning of Article 2(c) of that directive and conferring refugee status on that person, in so far as that person does not fall within the scope of Article 12(1)(b) or (2) and (3) of that directive, by analogy in point 2 of the operative part of the judgment of 19 December 2012, Mostafa Abed El Karem El Kott, Chadi Amin A. Radi and Hazem Kamel Ismail v Bevándorlási és Állampolgársági Hivatal (Hungarian Immigration and Asylum Office), C-364/11, without taking into account the circumstances of that person which are relevant to Article 15 (2) of Directive 2011/95/EU on subsidiary protection?